ON APPEAL FROM A FINAL DETERMINATION
OF THE DEPARTMENT OF STATE REVENUE

_____________________________________________________________________

June 24, 1998

FOR PUBLICATION

FISHER, J.
Hyatt Corp. (Hyatt) appeals a final determination of the Department of State
Revenue (Department) denying its claim for refund for use taxes paid on its food
purchases during 1986 through 1988.

FACTS AND PROCEDURAL HISTORY

Hyatt operates a major hotel chain. In the course of its hotel business, Hyatt

purchases unprepared food in order to prepare and serve complimentary meals to
members of its Regency Club and its employees. Hyatt paid use tax on the food that it
purchased during 1986 through 1988. Subsequently, the Department audited Hyatt
and issued a notice of proposed assessment concerning unrelated tax liabilities for the
years at issue. See Ind. Code Ann. § 6-8.1-5-1(a) (West Supp. 1997). Hyatt filed a
written protest. See id. § 6-8.1-5-1(c). The Department held a hearing on the matter
and issued its final determination in a letter of findings dated October 29, 1993.
In its letter of findings, the Department determined that Hyatt had an unpaid tax
liability. In the course of the proceedings, Hyatt asserted that it erroneously paid use
tax of $12,305.36 on its food purchases and that it was entitled to set off that amount
against the assessment. The Department concluded that Hyatt's purchases of food
were taxable and therefore denied Hyatt's attempt to set off the use tax it had already
paid against the assessment. On March 11, 1994, Hyatt paid the assessment. On April
18, 1994, Hyatt filed a claim for refund for the $12,305.36, plus interest, for the use tax
paid on the food purchases. On October 6, 1995, the Department denied Hyatt's
refund claim. On January 4, 1996, Hyatt filed this original tax appeal. Both parties
have moved for summary judgment.

ANALYSIS AND OPINION
Standard of Review

This Court reviews the Department's final determinations de novo and is not
bound by the evidence or the issues raised at the administrative level. See id. § 6-8.1-
9-1(d); Indianapolis Fruit Co. v. Department of State Revenue, 691 N.E.2d 1379, 1382

(Ind. Tax Ct. 1998). Summary judgment is only appropriate when there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter of law.
See Ind. T.R. 56(C); Roehl Transp., Inc. v. Department of State Revenue, 653 N.E.2d
539, 541 (Ind. Tax Ct. 1995). Cross motions for summary judgment do not alter this
standard. See Roehl Transp., 653 N.E.2d at 541.

Discussion

At the outset, the Court notes that there is an issue concerning the timeliness of
Hyatt's claim for refund.
(a) If a person has paid more tax than the person determines is legally
due, the person may file a claim for refund with the department. In order to
obtain the refund, the person must file the claim within three years after the latter
of the following:

(1) The due date of the return.
(2) The date of payment

Id. § 6-8.1-9-1(a). In this case, Hyatt's claim for refund was filed in 1994, approximately
six years after payment of the use tax was presumably made.See footnote
1 However, in its answer,
the Department admitted that Hyatt filed a timely claim for refund. This constitutes a
judicial admission that binds the Department.
See footnote
2
See State v. Hladik, 302 N.E.2d 544,
548-49 (Ind. App. 1973); T.R. 8(D). The Court also notes that the running of the
limitations period presents no problem with respect to this Court's subject matter

jurisdiction because this Court's jurisdiction does not depend on when the claim for
refund is filed with the Department, but rather when the appeal is filed in this Court.
See Ind. Code Ann. § 6-8.1-9-1(c) (West Supp. 1997).
The Court now turns to the merits of Hyatt's claim. Indiana imposes an excise
tax (sales or gross retail tax) on retail transactions in Indiana. See id. § 6-2.5-2-1
(West 1989). Indiana also imposes a complementary excise tax on tangible personal
property stored, used, or consumed in Indiana. See id. § 6-2.5-3-2; see also USAir,
Inc. v. Department of State Revenue, 623 N.E.2d 466, 468-69 (Ind. Tax Ct. 1993). A
variety of exemptions from these complementary taxes are available
.See footnote
3
See Ind. Code
Ann. §§ 6-2.5-5-1 to -38.2 (West 1989 & Supp. 1997). Like any other tax exemptions,
these exemptions are strictly construed against the taxpayer, see Sony Music
Entertainment, Inc. v. State Bd. of Tax Comm'rs, 681 N.E.2d 800, 801 (Ind. Tax Ct.
1997), review denied, and the taxpayer bears the burden of demonstrating entitlement
to the exemption. See id. However, [w]hen construing an exemption, . . . the court
must always bear the legislature's intent in mind to avoid reading the exemption so
narrowly its application is defeated in cases rightly within its ambit. Harlan Sprague
Dawley, Inc. v. Department of State Revenue, 605 N.E.2d 1222, 1225 (Ind. Tax Ct.
1992). In addition, [w]hen an enactment, including a tax exemption statute, is clear
and unambiguous, the plain language governs. J & J Vending, Inc. v. Department of

State Revenue, 673 N.E.2d 1203, 1206 (Ind. Tax Ct. 1996). This means that courts
should not employ the policy of strict construction to contradict the plain language of an
exemption provision. The Indiana General Assembly is presumed to have meant what
it said.
Hyatt claims that its purchases of food are exempt from use tax under Ind. Code
Ann. § 6-2.5-5-20 (West 1989) (amended 1989). The version of section 6-2.5-5-20
applicable to the tax years in issueSee footnote
4 provided:
(a) Sales of food for human consumption are exempt from the state gross
retail tax.

(b) For purposes of this section, the term food for human consumption
includes:

(5) medicines, tonics, vitamins, and other dietary supplements;
(6) water, mineral water, carbonated water and ice;
(7) pet food;
(8) food furnished, prepared, or served for consumption at a location, or
on equipment, provided by the retail merchant;
(9) food served by a retail merchant off his premises;
(10) food sold by a retail merchant who ordinarily bags, wraps, or
packages the food for immediate consumption on or near the merchant's
premises, including food sold on a take out or to go basis; and
(11) food sold through a vending machine or by a street vendor.

Subsection 6-2.5-5-20(a) exempts purchases of food for human consumption from
Indiana sales and use tax. Section 6-2.5-5-20(b) defines food for human
consumption. Subsection 6-2.5-5-20(c) excludes certain types of foods and
transactions from the food for human consumption definition. See J&J Vending, Inc.,
673 N.E.2d at 1205. Therefore, if Hyatt's food purchases fall within the statutory
definition of food for human consumption and are not excluded from that definition,
then Hyatt is entitled to the exemption.
The Department does not dispute that the food that Hyatt purchased consisted
of meat, eggs, fish, fruit, etc. and products of the same, which are included under the
definition of food for human consumption in subsection 6-2.5-5-20(b). Therefore, the
resolution of this case turns on whether Hyatt's purchases are excluded from the
definition of food for human consumption by subsection 6-2.5-5-20(c).
In its brief, the Department does not argue that any specific provision of
subsection 6-2.5-5-20(c) operates to exclude Hyatt's purchases of food from the
definition of food for human consumption. Rather, the Department argues that Hyatt
does not fall within the class of persons that the legislature intended section 6-2.5-5-20

to benefit because Hyatt Corporation is not a member of the poor or working class.
According to the Department, because Hyatt is not a member of the poor or working
class, allowing Hyatt to receive the exemption will not serve the legislative purpose of
mitigating the regressivity of sales tax on food.See footnote
5 See Taxpayers Lobby, Inc. v. Orr, 311
N.E.2d 814, 817-18 (Ind. 1974).
The Department also points out the fact that no sales tax is triggered when Hyatt
provides meals to its employees and to its Regency Club members. According to the
Department, this fact means that Hyatt's food purchases were taxable. In support of
this contention, the Department argues that the purpose of the Indiana Tax Code is to
tax the last point of sale. In this case, because Hyatt does not sell the meals it
provides, Hyatt's food purchases from its suppliers was the last point of sale and, as a
result, are taxable. The Department also contends that if Hyatt's food purchases are
not taxed, Hyatt will escape taxation entirely.
Additionally, in the Department's view,
applying the exemption to Hyatt's food purchases will not further the legislative purpose
of avoiding tax pyramiding. See Rotation Prods. Corp. v. Department of State
Revenue, 690 N.E.2d 795, 798 n.6 (Ind. Tax Ct. 1998) (discussing tax pyramiding and
legislative efforts to mitigate its effects).
Lastly, the Department argues that because
Hyatt did not intend to resell the food it purchased, its food purchases are taxable.

As stated above, section 6-2.5-5-20(c) excludes certain items and transactions
from the definition of food for human consumption. Subsections 6-2.5-5-20(c)(1)
through (c)(7) exclude certain items from that definition, e.g., pet food, candy, alcoholic
beverages, etc. Subsections 6-2.5-5-20(c)(8) through (c)(11) list certain transactions
excluded from that definition. The issue in this case is the nature of the transaction
between Hyatt and its suppliers, not whether the specific items purchased by Hyatt are
excluded by (c)(1) through (c)(7). Therefore, the Court focuses its analysis on the
nature of the transaction sought to be taxed and the subdivisions dealing with excluded
transactions.
A reading of subsections (c)(8) through (c)(11) reveals that the legislature
intended to exclude transactions involving prepared food from the definition of food for
human consumption. Subsection (c)(8) deals with sales of restaurant meals.
Subsection (c)(9) deals with sales of catered meals. Subsection (c)(10) deals with
sales of food for immediate human consumption, i.e. sales of ready-to-eat food. See
USAir, Inc v. Department of State Revenue, 542 N.E.2d 1033, 1038 (Ind. Tax Ct. 1989).
Subsection (c)(11) deals with food sales by vending machine sales and street vendors.
The evidence designated to the Court shows that Hyatt purchased unprepared food
from its suppliers. These transactions, i.e., the transactions sought to be taxed, do not
involve prepared food.See footnote
6 Therefore, none of the listed transactions in subsections (c)(8)

through (c)(11) apply here.
Because none of the exclusions are applicable, Hyatt's food purchases fall
squarely under the exemption provision at issue. Therefore, under the plain language
of the exemption provision, Hyatt's food purchases are not taxable. The Department's
arguments to the contrary do not alter this result.
It is true that Hyatt is engaged in business for profit and is arguably neither poor
nor a member of the working class and that section 6-2.5-5-20 was enacted to lessen
the tax burden on the poor. USAir, Inc., 542 N.E.2d at 1038. However, the means that
the legislature chose to carry out this purpose was to exempt all purchases of food
necessities and staples. Taxpayers Lobby, 311 N.E.2d at 817. Section 6-2.5-5-20
does not condition entitlement to the exemption on the income level or identity of the
food purchaser. The rich and the poor alike are eligible for the exemption.
Consequently, Hyatt's income level and the fact that it is engaged in business are
irrelevant for purposes of its entitlement to the exemption.
The Department's argument is nothing more than an invitation for this Court to
add restrictions on the exemption that the legislature itself chose not to include. See
Estate of Hibbs v. Department of State Revenue, 636 N.E.2d 204, 210 (Ind. Tax Ct.
1994) (Those words are not in the statute and the court will not put them there.). In
carrying out its purpose to relieve the tax burden of the poor, the legislature has chosen
to exempt all sales of food for human consumption, rather than restricting the

availability of the exemption based on the income level or identity of the purchaser. It
was well within the province of the legislature to choose broader means than those
necessary to achieve its goal, and it is not for this Court to override that choice by
rewriting section 6-2.5-5-20.
The Department's argument about the last point of sale is equally unavailing. It
is true that in the sales and use tax arena the Indiana General Assembly has striven to
tax the last point of sale (i.e., sales to the ultimate consumer) as opposed to
intermediate steps in the economic process. However, this does not mean that the
legislature is precluded from exempting last points of sale from sales and use tax. By
enacting section 6-2.5-5-20, the legislature has done precisely that. All purchases of
food for human consumption are exempt, notwithstanding the fact that many food
purchases are the last points of sale. When the last point of sale is exempted from
sales and use tax, the purchaser escapes taxation. But that escape is with the
legislature's blessing; consequently, it is not for this Court to prevent the escape simply
because it deems a taxpayer unworthy of receiving an exemption. The legislature
decides which taxpayer deserves to escape taxation and which taxpayer does not.
Consequently, Hyatt's entitlement to the exemption cannot be denied on this basis.
In addition, the Department's argument that because granting Hyatt the
exemption does not further the purpose of avoiding tax pyramiding, Hyatt is not entitled
to the exemption is unconvincing. Tax pyramiding occurs in the sales and use tax
context where a tax is levied upon a tax. This happens where intermediate
transactions in the economic process are subject to sales and use tax. As a result, the

sales and use tax on the final transaction in the economic process partially reflects the
sales and use tax on the previous transactions. See Harlan Sprague Dawley, Inc. v.
Department of State Revenue, 605 N.E.2d 1222, 1228 (Ind. Tax Ct. 1992).
In response to this problem, the legislature has enacted certain sales and use
tax exemptions in order to mitigate the effect of tax pyramiding. One example is the
enactment of Ind. Code Ann. § 6-2.5-5-8 exempting from sales and use tax goods
acquired for resale, rental, or leasing. Had the legislature not enacted this provision,
the tax on the final transaction or last point of sale would partially reflect the tax that the
seller would have had to pay on the acquisition of the good. Accordingly, the existence
or non-existence of tax pyramiding, although not dispositive, is important in this Court's
interpretation of a particular exemption provision,
see White River Envtl. Partnership v.
Department of State Revenue, No. 49T10-9605-TA-00048, slip op. at 8 (Ind. Tax Ct.
May 15, 1998), but only if mitigating the effect of tax pyramiding animated the
enactment of the exemption provision. Where mitigation of the effects of tax
pyramiding was not a concern in enacting a particular exemption provision, it is difficult
to see how the existence or non-existence of tax pyramiding should have any bearing
on this Court's interpretation of that exemption provision.
As the Indiana Supreme Court explained,
the food for human consumption
exemption was enacted in order eliminate the regressivity of imposing sales tax on
certain kinds of food sales. Taxpayers Lobby, 311 N.E.2d at 817; see also J & J
Vending, Inc., 673 N.E.2d at 1206-07. The exemption provision was not enacted in
order to mitigate the effects of tax pyramiding. This is convincingly demonstrated by

examining the transactions section 6-2.5-5-20 exempts. Section 6-2.5-5-20 exempts
last points of sale from taxation. A provision dealing with tax pyramiding exempts
intermediate transactions from taxation. It is therefore impossible to conclude that the
mitigation of the effects of tax pyramiding motivated the enactment of section 6-2.5-5-
20. Consequently, the non-existence of tax pyramiding in this case has no bearing on
this Court's decision.
Finally, the Department's argument that because Hyatt did not resell the food it
purchased, Hyatt's food purchases are taxable is without merit. Apparently, the
Department's argument is based on the fact that because Hyatt did not resell the food it
purchased, Hyatt's food purchases cannot qualify for an exemption under section 6-2.5-
5-8 (exempting, inter alia, goods purchased for resale). See Greensburg Motel
Associates, L.P. v. Department of State Revenue, 629 N.E.2d 1302, 1305 (Ind. Tax Ct.
1994). According to the Department, because Hyatt's food purchases cannot qualify
for an exemption under section 6-2.5-5-8, those food purchases cannot qualify for an
exemption under section 6-2.5-5-20. This position is contrary to law. The eligibility of
Hyatt's food purchases for an exemption under section 6-2.5-5-20 is not predicated on
whether those food purchases can qualify for an exemption under section 6-2.5-5-8.
See Lincoln Hills Devel. Corp. v. State Bd. of Tax Comm'rs, 521 N.E.2d 1360, 1362
(Ind. Tax Ct. 1988). Therefore, the fact that the food Hyatt purchased was not resold is
irrelevant to the question of whether Hyatt's food purchases qualify for an exemption
under section 6-2.5-5-20.

CONCLUSION

The evidence designated to the Court demonstrates that Hyatt's food purchases
are exempt from sales and use tax. Accordingly, this Court GRANTS Hyatt's motion for
summary judgment and DENIES the Department's cross motion for summary judgment.

Footnote: 1The record does not reflect when the use tax payments were made. Footnote: 2Had the Department raised the limitations issue, the question of whether the
limitations period began when Hyatt originally paid the use tax or began when Hyatt
paid the assessment that (in its view) should have been reduced would have arisen. In
light of the fact that the Department's admission renders the limitations issue moot, the
Court leaves a resolution of this question for another day.Footnote: 3The gross retail (sales) tax exemptions in chapter 6-2.5-5 of the Indiana Code
apply to the use tax imposed by section 6-2.5-3-2. See Ind. Code Ann. § 6-2.5-3-
4(a)(2) (West 1989); Indianapolis Fruit Co., 691 N.E.2d at 1383 n.1; Rotation Prods.
Corp. v. Department of State Revenue, 690 N.E.2d 795, 798 n.5 (Ind. Tax Ct. 1998). Footnote: 4The 1989 amendment to section 6-2.5-5-20 made no substantive changes to
the exemption provision.Footnote: 5A regressive tax is [a] tax levied at rates which increase less rapidly than the
increase of the tax[ed] base, thus bearing more heavily on poorer taxpayers. Tax for
which the rate decreases as the taxed base, such as income, increases. Black's Law
Dictionary 1285 (6th ed. 1990). Empirical studies have shown that imposing a sales
tax on food purchases is regressive. 2 Jerome R. Hellerstein & Walter Hellerstein,
State Taxation, ¶ 13.08[1] (1992). Footnote: 6The fact that Hyatt eventually prepared the food it had purchased is irrelevant.
Eligibility for this exemption provision does not turn on what is done with the food after
the relevant transaction. This is to be contrasted with other sales and use tax
exemptions. For example, eligibility for the industrial exemptions (Ind. Code Ann. §§ 6-
2.5-5-3 to -6 (West 1989 & Supp. 1997)) depends on what is done with the good after

the relevant transaction; it must be used in the course of production. See generally
Mechanics Laundry & Supply, Inc. v. Department of State Revenue, 650 N.E.2d 1223
(Ind. Tax Ct. 1995).